Ram Sewak And 4 Others vs Deputy Director Of Consolidation ...
2023 Latest Caselaw 15457 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Neutral Citation No. - 2023:AHC:107296
 
Reserved on 5.4.2023 
 
Delivered on 17.5.2023
 
Court No. - 18
 
Case :- WRIT - B No. - 3887 of 2022
 
Petitioner :- Ram Sewak And 4 Others
 
Respondent :- Deputy Director Of Consolidation And 2 Others
 
Counsel for Petitioner :- Puneet Kumar Verma
 
Counsel for Respondent :- C.S.C.,Anand Kumar
 

 
Hon'ble Chandra Kumar Rai,J.

1. Heard Mr. P.K. Sinha, Advocate assisted by Mr. Punit Kumar Verma, learned Counsel for the petitioners, learned Standing Counsel for the State-respondents and Mr. M.D. Mishra, Advocate assisted by Mr. Anand Kumar, learned Counsel for contesting respondent nos. 2 and 3.

2. Brief facts of the case are that plot No. 365 area 0-2-14, plot No. 365 area 5-4-1 and plot No. 366 area 0-5-3 situated in Village Jalalpur Dhanni Pargana Sadiabad, Tehsil- Jakhania, District Ghazipur were recorded in the name of ancestor of petitioners as well as contesting respondents. During first consolidation operation, name of Ramdas and Nirmal were recorded as co-tenure holder over the plot in dispute. It is material that Nirmal is petitioners' ancestor and Ramdas is ancestor of respondent nos. 2 and 3. The first consolidation operation was finalized by way of notification issued under Section 52 of the U.P. Consolidation of Holdings Act hereinafter referred as U.P.C.H. Act on 23.5.1964. No objection was filed against the basic year entry during first consolidation operation. The second consolidation operation took place in the Village by way of notification issued under Section 4 of the U.P.C.H. Act published on 7.11.1983 and in the basic year entry of the second consolidation operation, names of petitioners as well as contesting respondent nos. 2 and 3 were recorded as co-tenure holder. On 10.1.1984, Assistant Consolidation Officer on the basis of the agreement of both parties divided the disputed plot equally to the petitioners' father as well as respondent nos. 2 and 3. The order dated 10.1.1984 was accordingly implemented in the revenue records. The ancestor of the petitioners died accordingly vide order dated 22.12.1987 passed by Assistant Consolidation Officer, the name of petitioners were recorded as legal heirs of late Nirmal. It is also material that father of respondent nos. 2 and 3 namely Ramdas died in the year 1970 accordingly the name of respondent nos. 2 and 3 was recorded in place of their father. On 4.10.1995, respondent nos. 2 and 3 filed an objection under Section 9A-2 of the U.P. Consolidation of Holdings Act along with prayer for condonation of delay. On 13.1.2017 Consolidation Officer, Sadar Ghazipur consigned the objection filed by respondent nos. 2 and 3 on the ground that against the earlier order dated 10.1.1984 passed by Assistant Consolidation Officer, respondent nos. 2 and 3 have already filed an appeal before the Settlement Officer Consolidation. On 31.8.2016, respondent nos. 2 and 3 filed a time barred appeal against the order dated 10.1.1984 under Section 11(1) of the U.P. Consolidation of Holdings Act along with an application under Section 5 of Indian Limitation Act for condoning the delay of more than 32 years and six months. The appeal was numbered as appeal No. 1590. Settlement Officer Consolidation heard the aforementioned appeal and vide order dated 10.2.2020 dismissed the appeal filed by respondent nos. 2 and 3 on the ground of limitation. Against the order dated 10.2.2020, respondent nos. 2 and 3 filed revision under Section 48 of the U.P.C.H. Act which was numbered as revision No. 0059 of 2020. Deputy Director of Consolidation heard the aforementioned revision and vide order dated 26.11.2022 allowed the revision, set aside the orders dated 10.2.2020 and 10.1.1984 and remanded the matter before the Consolidation Officer to decide the objection on merit in accordance with law. Hence this writ petition.

3. This Court vide order dated 15.2.2023 directed the Counsel for private respondent nos. 2 and 3 to file counter affidavit. In pursuance of the impugned order dated 15.2.2023, respondent nos. 2 and 3 have filed their counter-affidavit and petitioners have also filed their rejoinder-affidavit.

4. Counsel for the petitioners submitted that remand order passed by the Revisional Court allowing the revision and sending the matter back before the Court of Consolidation Officer to decide the title objection on merit is abuse of process of law. He further submitted that appeal under Section 11 of U.P.C.H. Act filed by the respondent nos. 2 and 3 was barred by inordinate delay of about 32 years, as such, the Appellate Court has rightly dismissed the appeal filed by respondent nos. 2 and 3 on the ground of limitation. He further submitted that order dated 10.1.1984 was passed by Assistant Consolidation Officer during second consolidation operation and appeal under Section 11(1) of the U.P.C.H. Act has been filed by respondent nos. 2 and 3 on 31.8.2016 although the Village was denotified under Section 52 of the U.P.C.H. Act on 13.11.1999 accordingly the appeal under Section 11(1) cannot be filed after denotification of the Village in question. He further submitted that in any case, the Revisionsal Court can remand the matter to the Appellate Court to decide the appeal on merit after considering the delay condonation matter rather to remand the matter to the Consolidation Officer to decide the title objection on merit. He submitted that impugned revisional order be set aside and appellate order be maintained. Counsel for the petitioners cited the judgment of Hon'ble Apex Court reported in (2022) 0 Supreme (SC) 979 State of Uttar Pradesh and another Vs. M/s Satish Chand Shivhare and Others and placed reliance upon paragraph No. 21 of the judgment which runs as under:-

"21. The questions of law purported to be raised in this Special Leave Petition are misconceived. The right of appeal is a statutory right, subject to the laws of limitation. The law of limitation is valid substantive law, which extinguishes the right to sue, and/ or the right to appeal. Once an appeal is found to be barred by limitation, there can be no question of any obligation of the Court to consider the merits of the case of the appellant."

5. On the other hand, Mr. M.D. Mishra appearing for respondent nos. 2 and 3 submitted that by impugned order, matter has been remanded back before the Consolidation Officer, as such, petitioners have full opportunity to appear before the Consolidation Officer for adjudication of the matter on merit. He further submitted that ancestor of the petitioners have manipulated joint khata recorded in the name of Ramdas and Nirmal vide order dated 10.1.1984 against the provisions contained under Rule 25-A of the U.P.C.H. Rules. He further submitted that as soon as respondent no.2 came to know about the forged and fictitious order dated 10.1.1984 filed an appeal before the Settlement Officer Consolidation which was dismissed arbitrarily on the ground of limitation. He further submitted that Revisional Court has rightly allowed the revision and remanded the matter back before the Consolidation Officer for decision of the title objection in accordance with law. He submitted that no interference is required against the impugned order and writ petition is liable to be dismissed.

6. I have considered the arguments advanced by learned Counsel for the parties and perused the records.

7. There is no dispute about the fact that first consolidation operation was finalized in the Village in question on 23.5.1964 and second consolidation operation started on 7.11.1983. The second consolidation operation was finalized by way of notification issued under Section 52 of the U.P. Consolidation of Holdings Act on 13.11.1999. During second consolidation operation, an order was passed by Assistant Consolidation Officer on 10.1.1984 by which disputed plot was equally given to the ancestor of both parties. There is also no dispute about the fact that appeal filed against the order dated 10.1.1984 filed by respondent nos. 2 and 3 has been dismissed by the Appellate Court on the ground of limitation but a revision filed under Section 48 of the U.P.C.H. Act by respondent nos. 2 and 3 has been allowed setting aside the appellate order as well as the order of Assistant Consolidation Officer dated 10.1.1984 and matter has been remanded back to the Consolidation Officer to decide the title objection on merit.

8. It is also relevant to mention that appeal has been filed after about 32 years and six months from the date of passing of order dated 10.1.1984and after about 17 years from the date of the denotification of the Village under Section 52 of the U.P.C.H. Act, as such, the Appellate Court dismissed the appeal on the ground of limitation but Revisional Court while deciding the revision vide order dated 26.11.2022 has condoned the delay of 32 years by passing cryptic order. Revisional Court has also failed to consider the effect of denotification of the Village under Section 52 of the U.P.C.H. Act. The operative portion of the order of the Revisional Court runs as follows:-

"??????????? ?? ??? ?? ????? ??? ?? ????? ??????? ??????? ????????? ?? ?????? ???? ??? ???? ???????? ???? ??? ?? ???????? ?? ???? ?????? 10.01.1984 ?? ????? ?????? 31.08.2016 ?? ???? 32-33 ??? ??? ? ???? 52 ?? ??????? ?? ???? 17 ??? ??? ???? ????? ?? ??? ??, ?? ??????? ?????? ??? ????? ??? ???? ???????? ?????? ??????? ?????????? 1989 RD 18,2000 RD 689, 2019 RD 53,2021 RD 194 ? 2022 RD 309/469 ??? ?????????? ???? ??? ???? ?? ?????? ????????? ??????? ??????? ?? ???? ?????? 10.02.2020 ????????? ??? ??????????? ?? ????? ???????? ?? ?? ???? ?? ?? ??????? ???? ?? ???? ?? ?? ??????? ?????????? ?????? ?? ??? ????????? ????? ??? ??????? ??????? ?? ?????? ????? ???? ?? ??? ?????? ???? ??? ?? ???????? ?????? ??? ???????? ?? ???? ?????? 10.01.1984 ???????????? ???????? ??? ???????? ??? ????? ?????? ??? ?????? ????? ?? ????? ????-????? ??, ???? ??????? ?????? ???? ?????? ?????? ?? ???? ?? ????? ???? ?? ???? ??? ???????? ?? ??????? ??????? ?????? ?? ????? ???? ??, ? ?? ??? ??? ?? ?? ??? ????????? ??? ???????? ??? ?? ????? ?????? ?? ???? ?? ??????? ?????? ???? ?????? ?? ?? ??? ?????? ?? ??? ???????? ?? ?????? ?? ???? ????? ??????? ??????? ?? ???? ?? ???? ?????????? ?? ???? ????? ?? ????? ?? ???? ???? ???? ??? ?? ???-??? ?? ????? ??????? ???? ?? ?????? ???? ???? ??? ???????? ?? ?????? ????? ?? ?????? ??? ????????, ??????????? ??? ????????? ????????? ?????? ????? ??? ??? ?????? ??? ?????????? ????????? ??? ????????? ???????? ?? ???? ?????? ???? ?? ??????? ????????? 2020 (149) RD 249 ??? ??? ???? ???????? ?????? ?? ?????? ???? ??? ???

??? ??????? ?????? ?? ???? ??? ??? ?? ???????? ?? ??????? ??? ?? ?????? ??? ???????? ?? ?????? ???? ???? ??????? ?????? ??, ????? ??? ?????? ????? ?? ??? ???? ???? ?????? ??? ??? ????????? ??????? ??????? ?? ???? ?????? 10.02.2020 ??? ????? ??????? ??????? ?? ???? ?????? 10.01.1984 ?????????? ?????? ???? ???? ????? ???

????

??? ??????? ??????? ?? ???? ?? ?????? ????? ?? ??? ???? ???? ??? ????????? ??????? ??????? ?? ???? ?????? 10.02.2020 ??? ????? ??????? ??????? ?? ???? ?????? 10.01.1984 ?????? ???? ???? ??? ????? ?? ?????????? ??????? ???? ??? ???????? ?????? ??? ?? ?? ??????? ?? ??? ????????????? ?? ???? ?? ?? ??? ?????? ?? ??????? ??? ?????? ?? ?????? ???? ?????? ???? ??? ??? ?? ???????? ???-??? ?? ???? ?? 01 ??? ?? ????? ???? ????????? ????? ???? ?? ???????? ????? ?? ??? ??? ???????? ?? ??????????? ???? ?? ???? ??? ?????? ????????? ?? ?????? 26.11.2022

?????

26.11.2022

(?????? ??????????)

????? ?????? ???????,

?? ?????? ???????,

????????"

9. The perusal of the order of the Revisional Court reveals that there is no consideration by the Revisional Court in accordance with law regarding the filing of appeal after 32 years from the date of passing of the order as well as after 17 years from the denotification of the Village in question.

10. This Court in the case of Sharda Prasad Tiwari Vs. State of U.P. and Others reported in 2015 (127) RD 702 has held that appeal and revision can be filed against the order passed by consolidation authorities even after notification issued under Section 52 of the U.P.C.H. Act. In view of the decision of this Court in Sharda Prasad Tiwari (Supra), the appeal or revision can be filed even after denotification of the Village but not in all the cases where the Village has been denotified under Section 52 of the U.P.C.H. Act, the circumstances will vary from case to case and the Court is to examine the matter in accordance with law.

11. In the present matter, the Revisional Court has not properly examined the issue relating to condonation of delay, denotification of the Village under Section 52 of the U.P.C.H. Act as well as the maintainability of the appeal, as such, the impugned revisional order dated 26.11.2022 passed by respondent no.1 is liable to be set aside and the same is hereby set aside.

12. The writ petition stands allowed in part and matter is remitted back to the Revisional Court to decide the revision No. 0059 of 2020 afresh in the light of the observation made in the body of the judgment in accordance with law after affording opportunity of hearing to both parties expeditiously preferably within period of three months from the date of production of certified copy of this order.

Order Date :- 17.5.2023

Vandana Y.